This post comes as an update to the previous one (September 22, 2011) on the issue of what happened to the recording of the 911 call by my brother's wife Susan at 10:55 the night of his truck fire.
As I indicated in the previous post, when asked about the 911 call at a meeting in September 2005, N.Y.S.P. Inv. Edward Kalfas informed Atty. Michael Kelly that he could not remember what it said. Sr. Inv. John Wolfe then said that he would retrieve the 911 recording. In November 2005, after I asked Atty. Kelly to find out if Mr. Wolfe had reviewed the 911 call, the senior investigator informed him that he would not check the 911 call, among other things, unless the case was in fact re-opened, which depended on what he found in the medical records. It is very hard to understand why the senior investigator would not go back to review that 911 call, since Inv. Kalfas could not remember what was on it and so many conflicting or confusing statements had been made about the scene of the fire. Surely, that wouldn't have taken much time or effort, or drained N.Y.S.P. resources in any way.
In a response on my previous post to an anonymous comment about protocols for preserving 911 calls, I posted a comment on October 1 in which I mentioned contacting the Cattaraugus County Clerk's office about getting an audio and transcript of that 911 call. As I indicated, the individual with whom I had spoken stated that the County Clerk's office was the right place to contact for 911 call records, but he did not know how long 911 recordings are generally kept. However, he suggested that I make a FOIL request to that office to see if the call in question still existed, and I did it.
That conversation led me to wonder why, in response to my original FOIL request for the 911 call, the N.Y.S.P. FOIL Unit replied last June that a search of their files "failed to locate any records responsive" to my inquiry. It thus also seemed unclear why the FOIL Unit referred to the possibility of an appeal if the 911 recording was actually under the purview of the Cattaraugus County Clerk's office. I wondered as well why the FOIL Unit hadn't advised me to contact that office instead.
Last week I received a reply from the County Clerk's office. A memorandum was included from the County Sheriff's office, in which a box was checked indicating "Did not reveal any records." A stipulation is made at the end: "This memorandum indicates the absence or presence of information contained in our files. It does not preclude the possibility that other activities may have taken place which are not on record with this office." Immediately below it is a handwritten note stating the following: "Because this was not our case, we did not maintain a copy for any reason of the recording. Also, any recordings that were not previously recovered prior to Nov. 2010 are gone. This is due to the replacement of our recording system."
The response by the Cattaraugus County Sheriff's office raises questions for me. First, it is not clear why replacing a recording system would necessitate the loss of 911 calls made prior to the date of a new installation. Doesn't current technology enable such information to be preserved? Second, the Cattaraugus County District Attorney at the time of Mark's suspicious death and at the present (elected in November 2009) were both made aware of serious problems with the original investigation. Attorney Tony Tanke not only spoke several times with D.A. Sharkey's investigator Michael Malak during the course of the investigation but also raised questions to D.A. Sharkey himself in May 2004 about his conclusion that Mark's death was either an accident or a suicide. (The District Attorney added that he really believed it was a suicide.)
I myself wrote D.A. Sharkey three letters during the investigation and one in late 2008, informing him of information I had learned pointing to foul play. I also had telephone conversations and correspondence about the issue with current D.A. Lori Rieman, both before and after her election, and met with her at her office in May 2010. As mentioned previously in this blog, shortly after her election D.A. Rieman e-mailed me the following: "I cannot promise anything, but you deserve better and I will certainly do whatever I can. I am thinking of asking that a special prosecutor (i.e. the Attorney General's office) be appointed to conduct an independent investigation." At our meeting in 2010, even though D.A. Rieman abruptly changed her point of view without any warning and supported former N.Y.S.P. Sr. Inv. John Ensell's positions about the case, she did ask him to contact Judy Bess about her statement to me that Eugene Woodworth had heard a ruckus outside of Mark's house just before the truck fire. (As my post on April 20, 2011 indicates, Mr. Ensell reported that he had spoken with Eugene Woodworth but failed to find a telephone number for Judy Bess.)
With that background, why did the District Attorney's office fail to preserve the 911 call--and all the other evidence related to my brother's case (like the photographs of the scene)?